Pammela Quinn Saunders, a Sea Change Off the Coast of Maine: Common Pool Resources as Cultural Property

• Publication year: 2011

A SEA CHANGE OFF THE COAST OF MAINE: COMMON POOL RESOURCES AS CULTURAL PROPERTY

Pammela Quinn Saunders*

ABSTRACT

In groundbreaking and award-winning research, social scientists have documented the power of small groups to manage common pool resources (CPRs). That research concludes that collective or communal ownership of CPRs may be optimal in certain circumstances. While group- and community- level rights have also sometimes been conceived in property law terms, these accounts have not focused on whether and how to protect existing groups whose successful management of CPRs has been documented. The idea that such a movement might occur, and what form it should take, is ripe for consideration and evaluation.

In this Article, I use an initiative currently being advanced by a community of Maine lobstermen to create and illustrate a model that might be broadly used for the recognition of group-level property rights in communities, or other groups, that are the de facto stewards of CPRs. Describing both when and how such a community-level right might be recognized and what its substantive contours should be, the Article draws not only from the recent social science research that recognizes the benefits of small group management of CPRs, but also from the growing field of cultural property rights, in which group-level rights have already been embraced in both domestic and international law.

* Visiting Assistant Professor of Law, Drexel University, The Earle Mack School of Law. J.D., Duke

University School of Law; A.B., Dartmouth College. I would like to thank Blake Hudson, Hannah Wiseman, Nathan Saunders, and Dorothy Mayville for reading earlier drafts and providing excellent suggestions, all of which have greatly improved this Article. I am also very grateful for the assistance of Drexel law librarian John Cannan, whose ability to locate ancient and obscure sources is unparalleled. And my most particular thanks go to Matinicus Island lobsterman-lawyer Nat Hussey, who provided me with expert, firsthand accounts of Matinicus Island, its current plight, and its efforts to obtain subzone recognition—and who also generously loaned me a copy of the hard-to-obtain (and fascinating) Tales of Matinicus Island. Any errors and omissions are, of course, solely my own.

INTRODUCTION 1325

1. CASE STUDY: THE LOBSTERMEN OF MATINICUS ISLAND, MAINE ... 1330

   1. Regulation of the Maine Lobster Industry 1331

      1. Extralegal Rules, Customs, and Informal Practices 1331

      2. Formal Legal Regulation 1336

         1. Statutory Regulation: 1870s–1980s 1336

         2. Comanagement and Other Legal Regulation: 1990s

            to the Present 1340

   2. Matinicus Island, Maine: The Community, the Shooting, and

      the Aftermath 1342

2. COOPERATION AND RESOURCE MANAGEMENT BY SMALL GROUPS 1347

   1. Extralegal Group Management of the Commons 1348

   2. Effective Self-Regulation by “Close-Knit” Groups 1351

3. LEGAL RECOGNITION OF PROPERTY RIGHTS IN GROUPS 1357

   1. Common Law Recognition of Community-Level Rights 1357

   2. Protections of Cultures and Communities Under International

      Law 1360

   3. Domestic Legal Protection of Local Communities and Cultures 1365

      1. Domestic Legal Protection of Local Communities Outside

         of the United States 1365

      2. Legal Protection of Cultural Property in the United States 1367

4. THE COMMONS AS CULTURAL PROPERTY 1369

   1. When Cultural Property Rights in CPRs Should Be Recognized 1374

   2. Possible Methods of Recognizing a Community-Level Right ... 1382

      1. Zoning or Similar Initiatives 1382

      2. Statutory Possibilities 1384

         1. Community-Specific Approach 1385

         2. Broad Scheme Setting Forth Specified Criteria 1386

      3. Other Methods of Recognizing Group-Level Rights 1387

CONCLUSION 1387

INTRODUCTION

We’re looking at it from a community conservation point of view . . . . If we lose control of who fishes the bottom, then we lose the town.

—Clay Philbrook, Matinicus Island lobsterman1

In the summer of 2009, an argument between two lobstermen in a small Maine community culminated in a shooting.2 Predictably, the incident caused serious injury to the victim and resulted in the arrest and indictment of the gunman.3 Somewhat more unusually, it quickly spawned the filing of numerous civil lawsuits.4 But one legal consequence was extraordinary. The incident prompted the state of Maine to issue an order imposing a two-week moratorium on lobster fishing in island waters—during the high point of the lobster fishing season—effectively punishing not just the individuals involved, but the entire community in which the shooting occurred.5

The notion that a community could or should be punished for an individual’s misconduct will not resonate with most American-trained lawyers. This concept appears at odds with some of the most basic tenets underlying the American legal system, in which individual rights and responsibilities are some

of its most cherished core values.6 While the Western legal concept of

1. Shlomit Auciello, Matinicus Sees Lobster Subzone as Key to Survival, HERALD GAZETTE (Camden, Me.), Aug. 20, 2009, http://knox.villagesoup.com/print/Print.cfm?StoryID=172845 (internal quotation marks omitted). Members of the Philbrook family have resided on the Island since at least 1830. See DONNA K. ROGERS, TALES OF MATINICUS ISLAND 17 (1990); Abby Goodnough, Seeking Salve for the Wound of an Ailing Industry, N.Y. TIMES, Aug. 23, 2009, at A16 (noting that Philbrook’s ancestors “settled [on Matinicus Island] in the 1820s”).

2. See generally Goodnough, supra note 1.

3. Jim Flannery, Lobster Wars: ‘Good People’ Doing Bad Things, SOUNDINGS (Sept. 22, 2009), http://www.soundingsonline.com/component/content/article/241232/241232.

4. Id.

5. Id.; Nancy Harmon Jenkins, Maine Lobster Wars, ZESTER DAILY (Aug. 9, 2009, 3:53 PM), http://www.zesterdaily.com/politics/106-maine-lobster-wars.html.

6. THE FEDERALIST NO. 10 (James Madison) (proposing that a strong, centralized republic best protects individuals and the public against special interests of factions); AVIAM SOIFER, LAW AND THE COMPANY WE

   KEEP 1 (1995) (“[T]he American legal system lacks any theory to handle groups. The dominant legal paradigm in American law is the relationship between individual and state. The company we keep is presumed to be each person’s own business, beyond the notice of the law.”); Michael Corrado, Is There an Act Requirement in Criminal Law?, 142 U. PA. L. REV. 1529, 1529 (1994) (“No one should be punished except for something she does. . . . [S]he shouldn’t be punished for what someone else does . . . . Our conduct is what justifies punishing us. One way of expressing this point is to say that there is a voluntary act requirement in the criminal law.”); Kent Greenawalt, Punishment, 74 J. CRIM. L. & CRIMINOLOGY 343, 347 (1983) (“[O]nly those who are guilty of wrongdoing should be punished . . . .”). But cf. U.S. CONST. amend. I (right of free association). It is also at odds with basic tenets of the Judeo–Christian culture of which the U.S. legal system

   individual responsibility can be traced back to Biblical times (at least), the uniquely American cultural ideal of rugged individualism, and its equally robust emphasis on individual legal rights, is consistent with American constitutional history and the Federalist distaste for local factions.7 The

   Federalists deliberately created governments at the state and federal (but not local) levels, and vested individuals with rights in the hopes that this design would suppress local groups or factions that might threaten the Republic.8

   
   

   Despite this history, the logic underlying the state of Maine’s response to the shooting discussed above becomes understandable when considered in context. The entire lobster fishing community of tiny Matinicus Island, where the incident occurred, was involved in the lobstermen’s dispute.9 For weeks,

   the two men had been arguing about whether the gunman’s son-in-law, a mainlander, was entitled to trap lobsters on the ocean floor (or, in lobstermen’s parlance, “piece of bottom”) underlying the waters surrounding Matinicus Island.10

   
   

   This argument was only the latest manifestation of the Islanders’ tradition of insisting that Mainlanders are not welcome to set lobster traps on “their” bottom.11 The lobstermen of Matinicus Island have routinely and customarily insisted upon maintaining their traditional fishing boundaries against those they consider outsiders.12 As a result, the territorial boundaries of the

   
   

   is a part. See Thomas M. Franck, On Proportionality of Countermeasures in International Law, 102 AM. J. INT’L L. 715, 763 n.272 (2008) (“One of the principal innovations of the Old Testament . . . is to introduce the symmetry of its formulation for that of Hammurabi’s Code, a millennium earlier, which authorized the punishment of an innocent person (the perpetrator’s son or daughter) for the action of the wrongdoer.”); see also Deuteronomy 24:16 (“The fathers shall not be put to death for the children, neither shall the children be put to death for the fathers: every man shall be put to death for his own sin.”); Devarim 24:16 (“Parents shall not be put to death for children, nor children be put to death for parents: a man shall be put to death only for his own crime.”).

7. See, e.g., CAROL M. ROSE, Ancient Constitution Versus Federalist Empire: Antifederalism from the

   Attack on “Monarchism” to Modern Localism, in PROPERTY & PERSUASION 71, 73 (1994) (“[T]he mechanical operation of the whole [constitutional] structure works to impede incursions on individual entitlements.”).

8. Id.

9. Goodnough, supra note 1. I will use the terms fisherman/men and lobsterman/men to refer to members of both sexes, since both “[m]en and women [in the lobster industry] alike prefer to be called fishermen,

   lobstermen, or ‘lobster catchers’ . . . .” JAMES M. ACHESON, CAPTURING THE COMMONS: DEVISING INSTITUTIONS TO MANAGE THE MAINE LOBSTER INDUSTRY 237 n.1 (2003).

10. Goodnough, supra note 1.

11. Id.

12. Flannery, supra note 3 (“The century-old practice of [Matinicus I]sland families claiming exclusive lobstering rights to island waters is nowhere in Maine law, but it remains a fact of island life.”). As discussed

    at length, infra notes 31–63...